In a suit that could create a new marital tort in New!
Jersey, a noncustodial father is suing his children's mother
for alienation of their affection for him, which he says
should allow him recovery of psychological damages.

There is no legal precedent in New Jersey for an
alienation-of-affection suit by one parent against the
other, but New Jersey has allowed other interspousal tort
actions, such as for physical abuse, and plaintiff's lawyer
Steven Resnick says the facts of his case warrant such
treatment.

"We've tried other remedies and are asking to set a
precedent," says Resnick, a partner with Budd Larner in
Short Hills, N.J.

He says his client filed suit in the Law Division on Oct. 26
because, after 14 months of litigation, he's frustrated with
the usual matrimonial venue, the Chancery Division's Family
Part.

"There's no serious mechanism for punishment in the family
court," says Resnick. "Nobody takes alienation of a parent's
affections seriously, and no one asks what kind of damage
this does to the children."

The suit, Segal v. Lynch, was lodged by millionaire-developer
Moses Segal, originally from Toronto, who came to New Jersey
in pursuit of his girlfriend and common-law wife Cynthia
Lynch, with whom he separated in 2001.

The separation caused headlines in the Canadian press, after
the Ontario Court of Appeals awarded $8.3 million in
property to Lynch, reportedly a small part of Segal's $100
million empire. Altogether, Lynch got $12 million, said
Resnick.

Segal alleges that in June 2006, Lynch relocated to New
Jersey's Morris County, changed her phone number, blocked
e-mails and cut off all contact with their two children,
Emily, 13, and William, 9.

A private detective located Lynch in Millington, N.J., and
Segal filed suit in Morris County to resume visitation.
Resnick says he also sought an enforcement of litigants'
rights order, because Lynch allegedly twice attempted to
change her child's last name from Segal to Lynch.

But in the Law Division suit just filed, he says the damage
was done; that he no longer has the relationship with his
children he had previously. He is suing for negligence and
intentional infliction of emotional distress and asks for
compensatory and punitive damages.

Resnick and his associate, personal injury lawyer
Christopher Paldino, say the claim is structured along the
same lines as the tort claim for spousal abuse coined in
Tevis v. Tevis, 79 N.J. 42 (1979), where the New Jersey
Supreme Court allowed a wife to sue her husband for physical
beatings during the marriage.

But there is narrow precedent for recognizing emotional
distress in the Chancery Division. In Ruprecht v.
Ruprecht, 252 N.J. Super. 230 (Ch. Div. 1991), the court
held that for emotional distress to be actionable, the
conduct must be outrageous and "exceed all bounds usually
tolerated by decent society."

In Brennan v. Orban, 145 N.J. 282 (1996), the New
Jersey Supreme Court held that the family court has
discretion to decide whether or not the victim of a marital
tort will receive a jury trial on her tort claim that is
joined with a divorce action.

What's more, a New Jersey court rule, R. 5:7-8, requires the
presiding Family Part judge's approval for bifurcating a
matrimonial case, though Resnick says there is no need for
approval because the tort suit was filed in the Law
Division.

Cary Cheifetz, a matrimonial attorney with Ceconi & Cheifetz
in Summit, N.J., says it's a mistake for the courts to allow
a matrimonial litigant to use a Law Division suit to drive a
wedge into a custody or visitation proceeding.

"The courts give deference to family judges," he says. "It's
a crazy idea to file suit in the Law Division, because a Law
Division judge doesn't have the authority to resolve these
conflicts."

But, says Resnick, "The alienation doesn't take the form of
custody rights or visitation rights; it's an actual
alienation of affection for children and parents who
experience psychological distress because of this damaged
relationship."

Lynch's lawyer, Lynn Newsome, says the lawsuit may be novel
but the motive isn't. "Segal is the most litigious litigant
I've ever dealt with," says Newsome, of Donahue, Hagan,
Klein, Newsome & O'Donnell in Morristown. "This man has
shown a lack of cooperation and when a team of professionals
came in to work with them, including a court-appointed
unification expert, he instead files suit in another court."

New Jersey courts abolished alienation of affection as a
cause of action between spouses on June 27, 1935, and other
states have also abolished the action.

However, at least one court seems to have allowed a claim
like Segal's to go forward. In Raftery v. Scott, 756
F.2d 335 (4th Cir., 1985), a federal appeals court applying
Virginia law affirmed an award of $40,000 in compensatory
and $10,000 in punitive damages in an emotional distress
suit by a New York man who alleged it took a year to find
his child after his former wife absconded to Virginia while
the divorce decree was pending. By the time he was able to
see his child, the ex-wife had allegedly turned the child
against him, he alleged.

But a Wisconsin court went the other way in 1987, refusing,
in Gleiss v. Newman, 415 N.W.2d 845 (Wis. Ct. App.
1987), to allow a noncustodial parent to sue the custodial
parent and his new wife for emotional distress and
alienation of affection.

Some think the case has merit. Solangel Maldonado, a Seton
Hall Law School professor, says her research for a law
review article disclosed that one-half to one-third of
residential custodians of children -- mostly women --
interfere with visitation.

"Even though the context of bringing a claim of a parent
alienated by a child is original here, claims of problems
with visitation or custodial rights are not," Maldonado
says. "This is a problem in New Jersey and in other states
and nations with high divorce rates."

Mark Gruber, a Newton matrimonial attorney, says that
alienation of a parent can take the form of not allowing the
other parent access to medical or school records; blaming
the other parent for financial or emotional woes; asking the
child to select one parent over another; not allowing
telephone conversations with a nonresidential parent; and
changing last names.

"The legal precedent for bringing this type of action is a
long time coming," Gruber says of Segal's suit.

Sparta, N.J., divorce attorney Paris Eliades agrees. "We've
been grappling with the issue of parental alienation in
divorce litigation for years. There need to be consequences,"
says Eliades, of Daggett Kraemer Eliades Kovach &! amp;
Ursin.